NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3963-22
ESTATE OF AMELIA BAINLARDI (mother), and AMELIA BAINLARDI (daughter), the administrator of the ESTATE OF AMELIA BAINLARDI (mother),
Plaintiff-Appellant,
v.
HOME DEPOT U.S.A. INC.,
Defendant-Respondent,
and
STANLEY LABADY,
Defendant. _______________________________
Argued January 7, 2025 – Decided April 30, 2025
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0021-20. Jessica R. Bland argued the cause for appellant (Levinson Axelrod, PA, attorneys; Jessica R. Bland, on the briefs).
Kimberly A. House argued the cause for respondent (Marshall Dennehey, attorneys; Kevin E. Hextall and Jessica D. Wachstein, of counsel and on the brief).
PER CURIAM
Plaintiff Estate of Amelia Bainlardi (mother) (hereinafter plaintiff) and
Amelia Bainlardi (daughter), the administrator of the Estate of Amelia
Bainlardi, appeal from a no cause jury verdict.1 The action arose from plaintiff's
fall while shopping at defendant Home Depot. Plaintiff maintains the trial court
erred in admitting evidence of plaintiff's prior falls, medical history, and use of
a handicapped placard, and for denying their motion for a new trial. Plaintiff
also argues defense counsel made improper comments regarding plaintiff's
failure to appear at trial and that plaintiff's negligence claim was fabricated. As
evidence of plaintiff's prior falls, medical history, and use of a handicapped
placard should not have been admitted at trial and had the capacity to create an
unjust result, we vacate the jury's verdict and remand for a new trial.
1 Plaintiff passed away after the trial due to causes unrelated to her lawsuit. Amelia was later appointed by the court to continue the lawsuit on her mother's behalf.
A-3963-22 2 I.
In May 2019, the seventy-nine-year-old plaintiff and her daughter,
Frances Bainlardi, went shopping for flowers at Home Depot in East Windsor.
Plaintiff, who used the aid of a rollator, was walking down aisle 58 of the store's
garden center when she fell and fractured her hip. She alleged the fall occurred
because the front wheel of her rollator hit a roof support column situated in the
middle of the aisle that was bolted to the floor by an eight-by-eight-inch
baseplate, which was three-quarters of an inch thick and had bolts extending
upwards by approximately three-quarters of an inch.
Plaintiff sued Home Depot and Stanley Labady, Home Depot's store
manager, for negligence. Claims against Labady were later voluntarily
dismissed with prejudice.
In Limine Motions
Prior to trial, the court denied plaintiff's in limine motions to: (1) bar
evidence of her prior medical conditions and falls; (2) strike portions of defense
medical expert Steven Robbins, M.D.'s de bene esse testimony regarding her
prior medical history and falls; and (3) bar evidence of her placing a handicap
placard on her car. The court ruled Dr. Robbins' could not opine about plaintiff
having a propensity for falls, but falls could be used for impeachment purposes
A-3963-22 3 of plaintiff and other witnesses. The court also allowed defendant to mention
plaintiff's use of a handicap placard bar.
Plaintiff's Evidence
Plaintiff neither appeared nor testified at trial because of an unrelated
health issue. There were no witnesses to plaintiff's fall, and the store's
surveillance footage shows only her upper body and head as she fell because
shelves blocked the view of her lower body and rollator as she walked down the
aisle. Plaintiff's version of the fall and her related injuries was presented to the
jury through her counsel's reading of her deposition testimony. See N.J.R.E.
804(a)(4), N.J.R.E. 804(b)(1)(A), and R. 4:16-1(c). The trial court instructed
the jury not draw any inferences as to why plaintiff was not present to testify
and denied defendant's request for an adverse inference charge. See State v.
Clawans, 38 N.J. 162, 171 (1962).
Plaintiff deposed that her rollator wheel hit a bolt of the column baseplate
in aisle 58, causing her to fall to her right as the rollator sharply jerked left. She
said she did not see the column baseplate before her rollator wheel struck it
because she was "looking upward towards my daughter" walking ahead of her.
Plaintiff acknowledged she had limitations walking on the day of the accident,
because her legs were "hurting," "tingling," and "numb[]." She asserted her lack
A-3963-22 4 of balance did not cause the accident, but rather her rollator wheel hitting the
column's baseplate was the sole cause. She claimed using the rollator gave her
a "feeling of security and help[] . . . with [her] balance."
Plaintiff recalled two prior falls before the Home Depot accident. The
first occurred outside her daughter's house on Christmas Day in 2017, when she
tripped over a brick while using her cane, and the second in 2018, when she
slipped in her bedroom.
Frances testified at trial regarding plaintiff's prior falls and use of a
handicap placard. Her claim that she began caring for her mother after the Home
Depot accident conflicted with her deposition testimony that she was helping
her mother shower and dress before the accident. Frances discounted her
deposition remarks, claiming she "didn't . . . remember the date [of the accident]
because, you know, I was nervous that day. And like I said, I have a condition."
Plaintiff presented the expert testimony of Lance Markbreiter, M.D.,
F.A.C.S., a board-certified orthopedic surgeon, regarding the injuries she
sustained from the Home Depot accident. On cross-examination, he was
questioned about her prior medical history and falls.
Plaintiff also presented the expert testimony of Len McCuen P.E., A.I.A.,
C.H.F.P., who testified based on the fields of architecture, engineering, human
A-3963-22 5 factors, and facilities management. McCuen opined that defendant was
negligent in having a roof support column raised baseplate with protruding bolts
in a shopping aisle because a person is less likely to perceive low-lying objects
that are less than one foot high. He contended that the low quality of the
surveillance video footage rendered it unusable to measure or determine what
caused plaintiff to fall. He maintained whether plaintiff's rollator wheel hit the
baseplate could not be determined from the video footage.
Defendant's Evidence
Defendant's liability expert, Jody DeMarco, P.E., an expert in the fields
of civil engineering, forensic engineering, and human factors, testified about his
re-creation of plaintiff's accident to determine the cause of her fall. DeMarco
stated that through the surveillance video at Home Depot, he was able to
pinpoint plaintiff's location in the aisle when she fell by stacking planting pots
inside a shopping cart, simulating the top of plaintiff's head, and moving the cart
around aisle 58 while comparing a live feed of his demonstration with still
photographs from the video. DeMarco opined that when plaintiff fell she was
past the location of the column and, therefore, her rollator wheel did not hit the
column baseplate.
A-3963-22 6 Plaintiff's motion to strike the entirety of DeMarco's testimony –– arguing
it was unnecessary given how the accident happened was within the ken of the
average juror –– was denied. The trial court ruled:
An expert can certainly give testimony regarding their specialized knowledge, skill, and training and experience, but the expert is not precluded from providing testimony that, as counsel puts it, a layperson could simply have just measured things out. That doesn't make it inadmissible. It certainly goes to the . . . weight of the evidence but not to the admissibility of the evidence.
Regarding plaintiff's motion in limine to limit Dr. Robbins' testimony, the
court ruled was that Dr. Robbins could testify regarding plaintiff's medical
history and handicap placard for both impeachment and substantive purposes
but plaintiff's prior falls could only be used for impeachment purposes.
However, because the doctor was neither called to testify nor was his de bene
esse video testimony played, defendant did not present any testimony regarding
plaintiff's medical history, the handicap placard, or prior falls.
Summation/Jury Verdict
In summation, defense counsel argued the jury was not "given an
opportunity to judge [plaintiff's] demeanor" because she did not attend the trial.
Plaintiff's counsel objected. The court sustained the objection, and with
plaintiff's approval, instructed the jury:
A-3963-22 7 You are not to consider the reasons for why [plaintiff] is not here today, whether it's a positive reason or a negative reason. You're not to infer why she's not here and take away anything from that, and I'll instruct you again when I charge you, but you're to disregard any statements made by counsel in his closing arguments as to why [plaintiff] is not here.
The jury found defendant negligent. However, it found defendant's
negligence was not the proximate cause of plaintiff's fall. Thus, plaintiff was
not awarded damages.
New Trial Motion
Plaintiff filed a Rule 4:49-1(a) motion for new trial, arguing the jury's
verdict was inconsistent and against the weight of the evidence. Plaintiff also
argued there was a miscarriage of justice due to the trial court's erroneous
evidentiary rulings and defense counsel's improper summation comments
regarding plaintiff's non-appearance at trial. The motion was denied. This
appeal followed.
II.
We first address plaintiff's contention that the judge erred in (1) admitting
evidence of her medical history, pre-accident falls, and use of a handicapped
placard in the absence of expert testimony and (2) denying her motion to strike
A-3963-22 8 DeMarco's expert testimony recreating her accident. Before doing so, we set
forth the principles that guide our analysis.
An appellate court reviews "the trial court's evidentiary rulings . . . 'under
the abuse of discretion standard because, from its genesis, the decision to admit
or exclude evidence is one firmly entrusted to the trial court's discretion.'" State
v. Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. &
Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). This standard also applies to
challenges of a trial court's rulings regarding a counsel's summation. Litton
Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 392-93 (2009).
An abuse of discretion occurs when a trial judge's decision "was not
premised upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error
in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).
An improper evidentiary ruling will call for reversal if it "is 'so wide of the mark'
that it constitutes 'a clear error in judgment,'" State v. Garcia, 245 N.J. 412, 430
(2021) (quoting State v. Medina, 242 N.J. 397, 412 (2020)), such that it is
"clearly capable of producing an unjust result." Manata v. Pereira, 436 N.J.
Super. 330, 349 (App. Div. 2014) (quoting R. 2:10-2).
A-3963-22 9 When no objection is made to admission of evidence, but it is challenged
on appeal, the plain error standard applies. R. 2:10-2; State v. Santamaria, 236
N.J. 390, 405 (2019). Plain error is a "high bar" to clear. Santamaria, 236 N.J.
at 404. "[T]he error will be disregarded unless a reasonable doubt has been
raised whether the jury came to a result that it otherwise might not have
reached." State v. Singh, 245 N.J. 1, 13 (2021) (quoting State v. R.K., 220 N.J.
444, 456 (2015)). In civil cases, relief under the plain error rule "is
discretionary and should be sparingly employed." Cavuoti v. N.J. Transit Corp.,
161 N.J. 107, 129 (1999) (internal quotations and citation omitted); see also
Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 487 n.14,
(App. Div. 2012).
A. Evidence of Plaintiff's Prior Falls, Medical History, and Handicapped Placard
Plaintiff argues the evidence (her deposition testimony and her daughters'
trial testimony) she presented regarding her prior falls, medical history, and her
handicapped placard was premised on the fact that the trial court denied her in
limine motion and allowed Home Depot to present Dr. Robbins' de bene esse
testimony that her accident was due to her medical condition and akin to her
prior falls––not her rollator hitting the column baseplate. She asserts the court
"abused its discretion," in "admi[tting] [] this evidence in the absence of any
A-3963-22 10 expert medical opinion[,] [which] had the clear capacity to result in a
miscarriage of justice." She stresses that "Dr. Robbins did not offer an opinion
in his report that [her] prior falls or prior medical history contributed in any way
to her fall in the Home Depot store or the injuries she sustained as a result of the
fall." Plaintiff cites Allendorf v. Kaiserman Enter., 266 N.J. Super. 662, 672
(App. Div. 1993), arguing that while her "prior falls or medical conditions may
have been potentially relevant to [] the happening of her fall in the Home Depot
store or her injuries, expert medical testimony was required to show this 'logical
relationship.'" She asserts this did not occur.
Plaintiff further maintains that she was unfairly prejudiced by Home
Depot's summation argument that "plaintiff must have fallen because of her prior
[medical] conditions." She stresses the jury was allowed to consider "prejudicial
and medically unsupported" evidence to find Home Depot's negligence ––
namely having a support column secured by a baseplate in a shopping aisle ––
was not the proximate cause of her accident.
Defendant argues the trial court did not abuse its discretion "in permitting
the introduction of this evidence as substantive evidence of the cause of []
plaintiff's fall as well as to impeach the credibility of the witnesses." Defendant
stresses competent evidence was presented that her fall was not due to her
A-3963-22 11 rollator hitting the column baseplate through plaintiff's deposition testimony that
on the day of the accident she had balancing issues and her legs were ailing, and
through Frances' inconsistent testimony about the help she provided to her
mother before the accident. Defendant rejects plaintiff's reliance on Allendorf,
arguing "expert testimony is not required when the evidence at issue is used for
the purpose of rebutting causation for the incident as opposed to medical
causation." Defendant maintains it "did not contend that plaintiff's accident -
related injuries were caused by a pre-existing [medical] condition or some other
event," but that the "evidence went to [the] cause of the accident, not the cause
of the injuries."
We agree with defendant that plaintiff's reliance on Allendorf is
misplaced. There, it was held a "party seeking to present evidence of a prior
injury or condition relating to an issue of medical causation must show that the
evidence has some 'logical relationship to the issue in the case.'" 266 N.J. Super.
at 672 (emphasis added) (quoting Paxton v. Misiuk, 34 N.J. 453, 460 (1961)).
Despite our agreement with defendant regarding Allendorf, we conclude the trial
court should not have allowed evidence of plaintiff's medical conditions, prior
falls, and use of a handicapped placard, and should have granted her in limine
motion to preclude Dr. Robbins' testimony regarding that evidence.
A-3963-22 12 Initially, it must be pointed out that it was plaintiff who presented this
evidence, thereby it is seemingly counterintuitive that she can claim the jury's
verdict should be vacated as a result of her evidence. She presented this
evidence in anticipation of Home Depot presenting Dr. Robbins' de bene esse
testimony about her medical conditions and prior falls, which the court
determined was admissible. However, defendant chose not to present the
doctor's testimony, instead relying on plaintiff's evidence. There may be some
merit to finding that plaintiff should not be able to claim "foul" and get the
benefit of a new trial when her trial strategy backfired because Dr Robbins'
testimony was not shown to the jury. But the strategy was a direct result of the
court denying her in limine motion, which was a mistaken application of
discretion.
Dr. Robbins' de bene esse testimony concerning plaintiff's medical
conditions and prior falls should have been barred. His testimony did not
explain how plaintiff's accident was due to her prior medical conditions.
Proving plaintiff's medical conditions and prior falls caused her accident
requires expert testimony, especially where a reasonable explanation was
provided for the cause of her fall: her rollator wheel hit the column baseplate.
See Phillips v. Gelpke, 190 N.J. 580, 591 (2007) (quoting Scully v. Fitzgerald,
A-3963-22 13 179 N.J. 114, 127 (2004)) (holding expert testimony is needed when "the matter
to be dealt with is so esoteric that jurors of common judgment and experience
cannot form a valid judgment"); see also N.J.R.E. 702. Thus, the evidence of
plaintiff's medical conditions and prior falls was not probative of the cause of
her fall and was highly prejudicial. See, e.g., N.J.R.E 401 (relevant evidence),
N.J.R.E. 403 (exclusion of relevant evidence), and N.J.R.E. 404b (other acts).
The mistaken allowance of this evidence led to Home Depot's cross-
examination of Dr. Markbreiter about his prior diagnosis of plaintiff's
neuropathy, plaintiff's left hip surgery, physical therapy records about balance
and gait issues, and prior falls. Plaintiff’s daughters were also questioned in
detail about the unrelated medical history and falls. Under these circumstances,
it was a miscarriage of justice to allow the jury to consider this evidence because
there was no competent medical opinion that plaintiff's fall was attributable to
her medical conditions or prior falls. The fact the jury found defendant was
negligent––accepting plaintiff's claim that the column baseplate in the shopping
aisle was a dangerous condition––but that the negligence was not the proximate
cause of plaintiff's accident, demonstrates the prejudicial impact the evidence of
her medical conditions and prior falls had on the jury's thinking. Allowing the
A-3963-22 14 evidence was "clearly capable of producing an unjust result." Manata, 436 N.J.
Super. at 343-44 (internal citation omitted).
B. Defendant's Liability Expert Testimony
Turning to DeMarco's liability testimony, plaintiff argues he "did not offer
any testimony or an opinion based upon his experience as an engineer or provide
any type of engineering analysis," but "simply provided his personal belief as to
the location of [] plaintiff's fall" based upon a comparison of the surveillance
footage to a live feed of the area. Plaintiff contends that because "DeMarco was
never qualified as an accident reconstructionist expert or an expert in forensic
video analysis," his "belief was nothing more than a lay opinion as to where he
felt the plaintiff's fall occurred." Plaintiff argues "DeMarco offered no
testimony regarding the defect or any aspect of human factors," and "[n]one of
his testimony was within the ambit of forensic engineering or a human factors
analysis." The jury, according to plaintiff, could make its own analysis of the
surveillance video.
We are unpersuaded by plaintiff's arguments. We agree with defendant
that at trial plaintiff only looked to strike DeMarco's testimony about the cause
of her fall on the grounds that his testimony was unnecessary as it was not
outside the ken of the jury. Plaintiff's counsel stated that, though he "believe[d]
A-3963-22 15 there was a foundation . . . laid" for DeMarco's testimony, he did not think the
information fell "outside the ken of the average juror." It was not until plaintiff
moved for a new trial after the verdict that she contended DeMarco's testimony
was outside his area of his expertise as an engineer and therefore he was
unqualified to give an expert opinion. Thus, we should not consider the
argument unless there is a showing that plain error occurred. See R. 1:7-2 ("For
the purpose of reserving questions for . . . appeal relating to rulings or orders of
the court . . . a party, at the time the ruling or order is made or sought, shall make
known to the court specifically the action which the party desires the court to
take or the party's objection to the action taken and the grounds therefor." );
Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 523 (2011) (internal
quotations and citation omitted) (holding where a party "has not objected, we
generally will not reverse unless plain error is shown").
We conclude the trial court did not mistakenly apply its discretion in
overruling plaintiff's objection at trial. Nor did plain error occur through
DeMarco's testimony. DeMarco was properly qualified as an expert in the fields
of forensic engineering, civil engineering, and human factors, and his testimony
was in line with these qualifications. The surveillance video did not show the
floor, and there were no corroborating witnesses to plaintiff's account. Thus, it
A-3963-22 16 was appropriate for an expert, such as DeMarco, to opine as to why plaintiff fell.
DeMarco's method in reconstructing the accident was informed by his expertise
and training, not within the ken of the average juror, and his re-creation
substantively aided the jury. The fact that McCuen believed the video could not
be used to determine the cause of plaintiff's fall does not preclude DeMarco's
opinion.
DeMarco relied upon plaintiff's deposition, the surveillance video,
American Society for Testing and Materials standards, the applicable property
maintenance codes, and reference material about rollators. The still photographs
and live surveillance feed on which he based his opinion were properly
authenticated. See N.J.R.E. 901; Rodd v. Raritan Radiologic Assocs., P.A., 373
N.J. Super. 154, 165 (App. Div. 2004). His testimony detailed that what he
"saw on the live feed screen [the day of the re-creation] and what [he] saw on
the surveillance screen was the same view." Plaintiff had ample opportunity to
cross-examine DeMarco about his qualifications and the basis for his opinions.
There was nothing amiss about DeMarco's testimony.
III.
Since we vacate the jury's verdict and remand for a new trial due to the
trial court's mistaken application of its discretion in allowing evidence of
A-3963-22 17 plaintiff's medical history, prior falls, and use of a handicap placard, we need
not address plaintiff's contention that the trial court erred in denying her motion
for a new trial. For the sake of completeness, however, we will address
plaintiff's claim arising from defense counsel's summation.
Plaintiff takes issue with defense counsel's summation remarks regarding
her absence from the trial, and the implication that her daughters and counsel
fabricated the claim that she fell when her rollator wheel hit the column
baseplate. She claims these were improper comments and had the clear capacity
to result in a miscarriage of justice.
It is well settled that "counsel is allowed broad latitude in summation."
Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 84 (2024)
(quoting Hayes v. Delamotte, 231 N.J. 373, 387 (2018)). However, "counsel's
comments must be confined to the facts shown or reasonably suggested by the
evidence introduced during the course of trial." Hayes, 231 N.J. at 387 (internal
quotations and citation omitted). "Summations must be fair and courteous,
grounded in the evidence, and free from any potential to cause injustice." Risko,
206 N.J. at 522 (internal quotations and citation omitted). Counsel cannot
"misstate the evidence [or] distort the factual picture," and closing remarks
"must be based in truth." Comprehensive Neurosurgical, 257 N.J. at 84
A-3963-22 18 (alteration in original) (quoting Bender v. Adelson, 187 N.J. 411, 431 (2006)).
Counsel, however, is permitted to "argue from the evidence any conclusion
which a jury is free to reach." Colucci v. Oppenheim, 326 N.J. Super. 166, 177
(App. Div. 1999). Counsel "may draw conclusions even if the inferences . . .
are improbable, perhaps illogical, erroneous or even absurd, unless they are
couched in language transcending the bounds of legitimate argument, or there
are no grounds for them in the evidence." Ibid.
Comments in summation do not warrant a new trial unless they "are so
prejudicial that 'it clearly and convincingly appears that there was a miscarriage
of justice under the law.'" Bender, 187 N.J. at 431 (quoting R. 4:49-1(a)).
However, the failure "to make a timely objection indicates that defense counsel
did not believe the remarks were prejudicial at the time they were made." Risko,
206 N.J. at 523 (internal quotations omitted).
As to plaintiff's non-appearance at trial, defense counsel argued her
liability expert "relied on [the plaintiff] and her honesty and her accuracy, and I
guess they're asking you to do that too, even though she didn't come to [c]ourt
to testify about what happened." Defense counsel also stated: "They didn't call
[plaintiff]. They didn't call Frances. The two people that were actually in aisle
58 [the day of the accident]." After defense counsel remarked to the jury that
A-3963-22 19 they "weren't given an opportunity to judge [plaintiff's] demeanor," plaintiff's
counsel objected. As noted, the judge sustained the objection, instructing the
jury to disregard any statements made by counsel as to why plaintiff was not in
court.
We discern no injustice to plaintiff by these summation remarks. The
comments regarding plaintiff's non-appearance were not appropriate because her
absence was due to unrelated health reasons and the trial court had denied
defendant's request for an adverse inference charge. However, the trial court
properly directed the jury to disregard them. See City of Linden, Cnty. of Union
v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div. 2004) ("[A] clear
and firm jury charge may cure any prejudice created by counsel's improper
remarks during opening or closing argument."). There is no indication the jury
did not. See Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App.
Div. 2013) (citations omitted) ("The jury is presumed to have adhered to the
court's [limiting] instruction.").
As for the defense counsel's comments regarding the failure to call
Frances and that plaintiff's claim was fabricated, we review for plain error
because there was no objection to these comments. There was no error. Frances
was with plaintiff at the store and there was no ruling that her failure to testify
A-3963-22 20 was off-limits. Counsel had the right to assert plaintiff's claim that the column
baseplate caused her accident was concocted. It was fair comment by defense
counsel drawn from the evidence presented to the jury. No new trial is required
due to defense counsel's summation.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
A-3963-22 21